Toms v. Taft

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Toms, et al. v. Taft, et al. No. 01-4035 ELECTRONIC CITATION: 2003 FED App. 0263P (6th Cir.) File Name: 03a0263p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Arnold S. White, WHITE & FISH, Columbus, FOR THE SIXTH CIRCUIT Ohio, for Appellants. Todd R. Marti, OFFICE OF THE _________________ ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellees. ON BRIEF: LAURA TOMS and IRA X Arnold S. White, WHITE & FISH, Columbus, Ohio, for CHAIFFETZ, - Appellants. Todd R. Marti, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Plaintiffs-Appellants, - Columbus, Ohio, Linda L. Woeber, Ralph E. Burnham, - No. 01-4035 - MONTGOMERY, RENNIE & JONSON, Cincinnati, Ohio, v. > Jeffrey Lynn Glasgow, Tracie M. Boyd, FRANKLIN , COUNTY PROSECUTING ATTORNEY’S OFFICE, - Columbus, Ohio, for Appellees. BOB TAFT ; REGINALD J. - WILKINSON; ANTHONY J. - GIBBONS, J., delivered the opinion of the court, in which BRIGANO ; LAWRENCE - POLSTER, D. J., joined. GILMAN, J. (pp. 19-26), delivered BELSKIS; MARK CLARK, - a separate opinion concurring in part and dissenting in part. Defendants-Appellees. - - _________________ N Appeal from the United States District Court OPINION for the Southern District of Ohio at Columbus. _________________ No. 00-00190—Edmund A. Sargus, Jr., District Judge. JULIA SMITH GIBBONS, Circuit Judge. Plaintiffs- Argued: February 5, 2003 appellants Laura Toms and Ira Chaiffetz, a prisoner, sought to marry, but were unable to obtain a marriage license Decided and Filed: July 31, 2003 because Chaiffetz’s incarceration made it impossible for him to comply with an Ohio statute requiring both applicants for Before: GILMAN and GIBBONS, Circuit Judges; a marriage license to appear personally before the probate POLSTER, District Judge.* court. Toms and Chaiffetz sued various state officials under 42 U.S.C. § 1983, alleging a violation of their constitutional right to marry and seeking injunctive relief, monetary damages, and attorney’s fees. With the district court’s supervision, the parties reached a settlement with respect to the claims for injunctive relief, and Toms and Chaiffetz * The Ho norable Dan Aaron Polster, United States District Judge for married. After the settlement was obtained, the district court the Northern District of O hio, sitting by designation.

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entered an order stating that plaintiffs’ request for an Court, however, indicated that he was willing to assist injunction was moot. The district court also granted summary plaintiffs by appointing either an employee of WCI judgment in favor of defendants on the ground that they were designated by the warden, or an employee of the Warren protected by qualified immunity and refused to award County Probate Court, to serve as a deputy clerk of the attorney’s fees because plaintiffs were not prevailing parties Franklin County Probate Court for the purpose of issuing the within the meaning of 42 U.S.C. § 1988. Plaintiffs appeal on marriage license. Belskis later memorialized these four grounds, arguing that the district court erred by possibilities in an order issued December 30, 1999. (1) granting summary judgment before discovery had commenced; (2) finding that the defendants were entitled to Toms wrote to Anthony Brigano, warden of WCI, on qualified immunity; (3) refusing to award monetary damages July 12, 1999, asking him to provide assistance in appointing without considering evidence on the issue; and (4) refusing to someone to act as a deputy clerk and suggesting that award attorney’s fees. For the reasons set forth below, we Chaiffetz’s attorney could serve in that capacity if Brigano affirm the judgment of the district court on all four issues. preferred not to designate a WCI employee. Brigano declined this request in a letter, stating, “I do not see myself or the I. institution being involved in this process,” other than allowing a brief marriage ceremony during normal visiting Ira Chaiffetz and Laura Toms (now Laura Chaiffetz) hours if the couple obtained a marriage license. became engaged while Chaiffetz was incarcerated at the Warren Correctional Institution (WCI) in Warren County, Toms and Chaiffetz obtained counsel, who wrote to Ohio. Like most states, Ohio requires prospective spouses to Brigano on September 20, 1999, again requesting that he obtain marriage licenses. In order to do so, “[e]ach of the designate an employee of WCI to serve as a deputy clerk to persons seeking a marriage license shall personally appear in issue the marriage license. Brigano denied this request, citing the probate court within the county where either resides” to a policy of the Ohio Department of Rehabilitation and apply for a license. Ohio Rev. Code Ann. § 3101.05(A). The Correction (ODRC) that specifies that “all preparatory statute provides for a waiver of the personal appearance obligations, such as securing a marriage license, are the sole requirement in cases involving “illness or other physical responsibility of the couple to wed.” Plaintiffs received a disability,” but there is no provision for a waiver due to similar response from Reginald Wilkinson, the director of the incarceration. ODRC, who wrote, “It is not the responsibility of ODRC to obtain marriage licenses for the inmates in its custody . . . . Plaintiffs asked the probate courts of both Warren County The issuance of a marriage license is a function assigned by and Franklin County, where Toms resides and where statute to the probate courts in Ohio.” Wilkinson also quoted Chaiffetz resided before his incarceration, to waive the and attached the policy stating that securing a marriage personal appearance requirement, but both courts declined.1 license is the couple’s responsibility. Judge Lawrence Belskis of the Franklin County Probate Plaintiffs also sought to avail themselves of Judge Belskis’ second option, a deputy clerk from the Warren County 1 Pro bate courts in other Ohio counties apparently interpret the Probate Court who would travel to the correctional institution. personal appearance requirement more liberally, and at least 129 inmates in the Ohio Department of Rehabilitation and Co rrection’s custody were married in 1998 and 1999.

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They wrote to Judge Mark Clark of that court.2 Clark minds.” Plaintiffs accepted the outcome and asked that their declined to designate a clerk for that purpose, stating that request for injunctive relief be withdrawn as moot. The same “due to the numerous requests this Court receives and the day, March 31, 2000, the district court responded to this hardship it places on our clerks, it is our policy that we do not request by entering an order stating that “[t]he parties to this send employees to the correctional facilities located in our matter have resolved their differences. The pending Motion County.” Finally, plaintiffs sought assistance from Ohio for Preliminary and Permanent Injunction is therefore moot.” Governor Bob Taft, in a letter dated October 29, 1999. Approximately two weeks later, plaintiffs were married. Governor Taft forwarded the request to the ODRC, and administrative assistant Stacha Doty responded that “Warden The issues of damages and attorney’s fees were not Brigano is correct in not deputizing an employee to serve the resolved at the conference. After the conference, all marriage license on the inmate. That is not a part of the defendants moved for summary judgment. Plaintiffs opposed mission [of the ODRC].” Doty also wrote that: summary judgment and sought discovery. In an order dated January 4, 2001, the district court denied plaintiffs’ motion No one is denying you the right to get married. You are for discovery because the defendants’ arguments “were based responsible to obtain a marriage license. I am aware that on matters of law, namely whether the individual defendants Franklin County will not issue a marriage license without are entitled to immunity.” In the same order, the court both parties present. It is the policy of the [ODRC] not granted the defendants’ motions for summary judgment, to transport inmates for the purpose of gaining a marriage finding that they were entitled to qualified immunity because, license. even if the plaintiffs’ rights to marry and to access to the courts were violated, neither right was “so clearly established On February 18, 2000, Toms and Chaiffetz filed suit under that a reasonable official would understand that his actions 42 U.S.C. § 1983 against Taft, Brigano, Wilkinson, Belskis, violate[d] that right.” and Clark, claiming violations of their right to marry and right to access to the courts and seeking injunctive and monetary The district court’s January 4, 2001, order did not address relief. the issue of attorney’s fees. The parties therefore briefed the issue. The district court denied plaintiffs’ request for The district court scheduled a settlement conference for attorney’s fees, finding that plaintiffs were not prevailing March 31, 2000. At the conference, defendants agreed that parties under 42 U.S.C. § 1988 (as explained by the Supreme the Franklin County Probate Court would deputize an Court in Buckhannon Board and Care Home, Inc. v. West employee of the “central office” of the ODRC (specifically, Virginia Department of Health and Human Resources, 532 an Assistant Attorney General) as a clerk to issue the U.S. 598 (2001)). Plaintiffs timely appealed, contending that marriage license to Chaiffetz at WCI. the district court erred by (1) granting summary judgment before discovery had begun, (2) finding that defendants were The district court then recited this arrangement into the protected by qualified immunity, (3) denying monetary record to make sure the parties had reached “a meeting of the damages without considering evidence on the issue, and (4) denying plaintiffs’ request for attorney’s fees.

2 Judge Clark was retired at that time, but no other judge had been named to replace him.

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II. B. Qualified immunity A. Grant of summary judgment before discovery The Chaiffetzes’ second argument is that the district court erred in finding that the defendants were protected by First, the Chaiffetzes contend that the district court erred by qualified immunity. Because this is a question of law, it is granting summary judgment before they had conducted reviewed de novo. Bell, 308 F.3d at 601. Moreover, this discovery. We review for abuse of discretion. See Emmons court examines de novo all appeals arguing that summary v. McLaughlin, 874 F.2d 351, 356 (6th Cir. 1989). judgment was improperly granted. Summar v. Bennett, 157 F.3d 1054, 1057 (6th Cir. 1998). In this case, the district court did not abuse its discretion by granting summary judgment before discovery had Generally, government officials performing discretionary commenced. The basis for the district court’s decision was its functions are shielded from liability for civil damages unless finding that defendants were protected by qualified immunity, their conduct violates clearly established statutory or a purely legal question. Bell v. Johnson, 308 F.3d 594, 601 constitutional rights of which a reasonable person would have (6th Cir. 2002) (“qualified immunity is a question of law”). known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In To resolve that issue, the only question was whether order for a right to be “clearly established,” it must be plaintiffs’ rights were “clearly established,” thus putting established in a particularized, relevant sense: the “contours defendants on notice that they may have been violating those of the right must be sufficiently clear that a reasonable official rights. Although the Chaiffetzes cite various areas they would understand that what he is doing violates that right.” would have investigated through discovery, such as the state’s Anderson v. Creighton, 483 U.S. 635, 640 (1987). “[I]n the treatment of other prisoners who wished to marry, this light of pre-existing law the unlawfulness must be apparent.” information does not bear on the dispositive question of Id. Government officials are shielded from civil damages whether the prisoner’s right to marry was “clearly liability “as long as their actions could reasonably have been established.” Moreover, it is proper to decide the qualified thought consistent with the rights they are alleged to have immunity issue at the threshold of each case, before violated.” Id. at 638. Thus, officials are “entitled to qualified burdening potentially immune defendants with discovery. immunity [when] their decision was reasonable, even if Where the defendant seeks qualified immunity and the mistaken.” Hunter v. Bryant, 502 U.S. 224, 229 (1991). defense is dispositive, a ruling on that issue should be made Qualified immunity “provides ample protection to all but the early in the proceedings so that the costs and expenses of trial plainly incompetent or those who knowingly violate the law.” are avoided. Saucier v. Katz, 533 U.S. 194, 200 (2001); Malley v. Briggs, 475 U.S. 335, 341 (1986). Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (“[W]e repeatedly have stressed the importance of resolving This court evaluates qualified immunity claims using a immunity questions at the earliest possible stage in three-part inquiry. First, we determine whether the facts litigation.”); Criss v. City of Kent, 867 F.2d 259, 261 (6th Cir. viewed in the light most favorable to the plaintiffs show that 1988) (“[D]iscovery in litigation against government officials a constitutional violation has occurred. Feathers v. Aey, 319 should be halted until the threshold question of immunity is F.3d 843, 848 (6th Cir. 2003). Second, we determine whether resolved.”). Thus, the district court did not abuse its the right that was violated was a clearly established right of discretion in granting summary judgment on the basis of which a reasonable person would have known. Id. Finally, qualified immunity before allowing discovery. we determine whether the plaintiff has alleged sufficient facts,

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and supported the allegations by sufficient evidence, to inmate marriage licenses.3 Thus, we cannot determine indicate that what the official allegedly did was objectively whether the ODRC policy violated plaintiffs’ rights. Rather, unreasonable in light of the clearly established constitutional we note that the ODRC policy, although it does not rights. Id.; Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. affirmatively prohibit the exercise of the right to marry, is a 1999). regulation that must be justified under Turner’s test. It is undisputed that the right to marry is protected by the The second part of the qualified immunity inquiry asks Due Process Clause of the Fourteenth Amendment. Zablocki whether the constitutional right was clearly established such v. Redhail, 434 U.S. 374, 383 (1987). “The freedom to marry that reasonable officials would know that their conduct has long been recognized as one of the vital personal rights violated the right. Plaintiffs have the burden of showing that essential to the orderly pursuit of happiness by free men.” a right is clearly established. Pray v. City of Sandusky, 49 Loving v. Virginia, 388 U.S. 1, 12 (1967) (quoting Skinner v. F.3d 1154, 1158 (6th Cir. 1995). The right must be clearly Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)). It established in a particularized sense, as discussed above. is also undisputed that the right to marry extends to prisoners. However, as the Supreme Court has explained, “officials can Turner v. Safley, 482 U.S. 78, 95 (1987). However, the right still be on notice that their conduct violates established law is not unfettered. Turner holds that a prisoner’s right to marry even in novel factual circumstances.” Hope v. Pelzer, 526 may be restricted where the restriction is reasonably related U.S. 730, 741 (2002). “Although earlier cases involving to a legitimate penological interest. Id. at 96-97. Applying ‘fundamentally similar’ facts can provide especially strong that test, the Turner Court held unconstitutional a Missouri support for a conclusion that the law is clearly established, regulation that prohibited prisoners from marrying unless the they are not necessary to such a finding.” Id. In determining superintendent found compelling reasons for allowing the whether a right is clearly established, “we look first to the marriage. Id. at 97-98. The Court noted that “legitimate decisions of the Supreme Court, then to the decisions of this security concerns” may require placing restrictions on an court and other courts within our circuit, and finally to inmate’s right to marry, id. at 97, and that the right “is subject decisions of other circuits.” Bell v. Johnson, 308 F.3d 594, to substantial restrictions as a result of incarceration,” id. at 602 (6th Cir. 2002). The district court, analyzing relevant 95. Therefore, Turner recognizes a prisoner’s right to marry, law, determined that a prisoner’s “right to marry in this but also recognizes that the right can be curtailed for context was not so clearly defined that a reasonable person penological reasons. In short, “when a prison regulation would have known that it was being violated by the impinges on inmates’ constitutional rights, the regulation is defendant[s’] actions.” valid if it is reasonably related to legitimate penological interests.” Id. at 89. 3 We hold that refusal to aid a prisoner in exercising his right The dissent would fault Brigano for failing thus far to articulate a legitimate penological interest justifying the ODR C policy. Judge Gilman to marry, where such refusal completely frustrates the right, states, “Brigano has not asserted before the district court or on appeal that can amount to a “prison regulation” under Turner. Therefore, his refusal to allow anyone at W CI to be deputized for matrimonial such refusals must be reasonably related to legitimate purposes was related to a legitimate penological interest.” (Diss. Op. at penological interests. In this case, summary judgment was 3.) It is premature at this point, however, to extract any meaning from granted before state defendants were required to articulate a defendants’ failure to assert a legitimate penological interest. The litigation simply has not proceeded to the stage at which defendants are legitimate penological interest to justify their policy regarding required to do so .

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The Chaiffetzes argue that, in light of Turner, a prisoner’s although Chaiffetz had the constitutional right to marry, there right to marry was sufficiently well-established that was no clearly established right to enlist the affirmative defendants should have known they were required to take assistance of prison and judicial officials in attempting to affirmative steps to assist the plaintiffs in obtaining a exercise that right. When a prisoner is incarcerated, a “large marriage license. They also cite Carter v. Dutton, No. 93- number of rights are significantly curtailed because of the fact 5703, 1994 U.S. App. LEXIS 1268 (6th Cir. Jan. 21, 1994) that the prisoner is not at physical liberty to make (unpublished). In Carter, the Sixth Circuit held that a arrangements that would be possible were the prisoner able to Tennessee regulation imposing a one-year waiting period on travel in the community.” Id. inmates who wished to marry was unconstitutional, but also found that the defendants were entitled to qualified immunity Because the case law fails to show that an inmate’s right to because Turner had not clearly defined the boundaries of the marry was so clearly established that an official reasonably right to marry such that they knowingly violated it. In Carter, would believe that declining to assist an inmate in obtaining this court stated that “[t]he underlying issue is to what extent a marriage license is unconstitutional, the Chaiffetzes have an inmate’s marriage may be controlled by the state; and upon failed to meet their burden. We affirm the finding of that issue there is no binding precedent.” Id. at *2. qualified immunity. 4 However, in order to provide more Therefore, Turner had not “clearly established” the law such guidance to officials in the future, we note that Turner’s test that state officials would know a one-year waiting period extends to situations in which an inmate’s right to marry will violated an inmate’s right to marry. The Chaiffetzes cite no be completely frustrated without prison officials’ affirmative authority other than Turner and Carter to demonstrate that a assistance. Although it was not previously clearly prisoner’s right to assistance in obtaining a marriage license established, we now hold that the distinction between actively was clearly established. Although both cases recognize that prohibiting an inmate’s exercise of his right to marry and the constitutional right to marry extends to prisoners, neither failing to assist is untenable in a case in which the inmate’s defines the contours of the right. Specifically, neither case right will be completely frustrated without officials’ discusses whether prison officials and judges must involvement. Therefore, where an inmate will be unable to affirmatively aid prisoners in their efforts to marry. marry without prison officials’ affirmative assistance, Turner’s strictures apply. The inmate’s right to marry may be The lack of prior authority imposing a duty upon officials curtailed only where the officials’ refusal to assist the inmate to act affirmatively to aid an inmate in exercising his right to is reasonably related to legitimate penological interests. marry indicates that qualified immunity is appropriate here. In Gibson v. Matthews, 926 F.2d 532 (6th Cir. 1991), an inmate brought suit alleging that prison officials violated her constitutional rights by not enabling her to have an abortion. The Sixth Circuit stated that “[t]he actions that Gibson thinks 4 The dissent would affirm the grant of summary judgment on the the prison officials should have performed fall, in our basis of qua lified imm unity to all defendants exc ept Brigano, who in opinion, closer to a failure to act than a prohibition [of her Judge Gilm an’s view “should have known that his actions violated Ira exercise of the right].” Gibson, 926 F.2d at 536. While there Chaiffetz’s clearly established constitutional rights.” (Diss. Op . at 1.) may have been a right to abortion, there was no clearly However, the dissent fails to explain why Brigano would be treated established right of a prisoner “to require the aid of prison differently than Taft or Wilkinson, who both also received correspondence from plaintiffs and who b oth presumably had the officials in procuring an abortion.” Id. Similarly, in this case, authority to alter the policy at issue.

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The dissent asserts that the action/inaction dichotomy is “a not read Turner to eradicate the action/inaction distinction. distinction without a difference in this context.” (Diss. Op. at Indeed, this court did not consider Turner to have done so, as 4.) We agree that the action/inaction distinction should not its opinion in Gibson reveals. Nor would a reasonable warden ultimately relieve officials from liability where they necessarily believe that ODRC’s policies for handling inmate knowingly violated the prisoner’s constitutional right through weddings, under which more than one hundred Ohio inmates inaction rather than through affirmatively prohibiting the were able to marry in 1998 and 1999, were unconstitutional.5 exercise of the right. We have set forth this principle in order The dissent cites no additional cases in support of its to establish it more clearly for government officials in the argument that the right at issue was clearly established. The future. We do not, however, believe that this principle was reasoning of an applicable precedent, even if its facts are not sufficiently clearly established in a particularized, relevant fundamentally similar, can make obvious a government sense during the time period in which Brigano acted (or failed official’s legal obligations, as the dissent notes and as Hope to act). See Anderson, 483 U.S. at 640. In Gibson, this court v. Pelzer, 536 U.S. 730, 741 (2002), explains. But Turner did held that the law had not clearly established that prison not make clear that Brigano was required to affirmatively officials were required to facilitate prisoners in their requests assist Chaiffetz in his attempts to obtain a marriage license. for abortions, although prior cases had held that prisoners had the right not to be prevented from having an abortion. C. Monetary Damages Gibson, 926 F.2d at 535. Thus, if Brigano considered Gibson, he could reasonably have believed that Chaiffetz had The Chaiffetzes’ third contention is that the district court no constitutional right to require officials’ affirmative “erred in its summary judgment order by denying appellants assistance in marrying simply because one case, Turner, had without a hearing their right to show that they were entitled to held unconstitutional a policy prohibiting marriages. money damages.” However, an award of monetary damages is unavailable, given that the defendants are entitled to The dissent argues that one can view Turner as clearly qualified immunity. The effect of qualified immunity is to establishing the right at issue, if one characterizes the protect government defendants from liability, including regulation in Turner as “a failure by prison officials to monetary liability. Harlow, 457 U.S. at 818 (qualified ‘affirmatively aid’ inmates in marrying.” (Diss. Op. at 4.) immunity shields eligible officials from liability for civil The Supreme Court, however, characterized the rule as a damages). Therefore, it was not error for the district court to “prohibition.” Turner, 482 U.S. at 97. The dissent’s reading decline to hold a hearing. of the Turner regulation as “a failure by the prison’s superintendent to provide a chaplain to perform marriages 5 . . . ”, Diss. Op. at 4, does not find support in the Supreme Although courts engaging in qualified immunity analyses often Court’s opinion. It included no discussion of the logistics of consider only case law when determining whether the right at issue was prison marriage ceremonies, other than to affirm that prison clearly established, the Supreme Co urt in Hope also considered a Department of Justice report and an Alabama D epartment of Corrections officials may regulate the time and circumstances under regulation in deciding whether the officials were on notice tha t their which the ceremonies take place. Turner, 482 U.S. at 99. conduct violated the plaintiff’s rights. Hope, 536 U.S. at 744 -45. In this The regulation at issue did not amount to a mere “failure to case, therefore, w hile not dispositive, it is appropriate to consider the provide . . . a chaplain”; rather it banned all inmate weddings OD RC’s policy, on which Brigano apparently relied, that “all preparatory absent the superintendent’s express permission, given only for obligations, such as securing a marriage license, are the so le responsibility of the couple to wed,” in determining whether he knowingly violated compelling reasons. A reasonable government official would plaintiffs’ rights.

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D. Attorney’s fees necessary to permit an award of attorney’s fees.” Id. at 604 (internal quotation marks omitted). Private settlement Finally, the Chaiffetzes contend that the district court erred agreements do not confer prevailing party status. Id. at 604 in declining to award attorney’s fees pursuant to 42 U.S.C. n. 7 (“Private settlements do not entail the judicial approval § 1988. The statute, 42 U.S.C. § 1988, provides that a court and oversight involved in consent decrees.”). may grant attorney’s fees to “the prevailing party.” The Supreme Court has limited the term “prevailing party” to a In this case, plaintiffs obtained defendants’ “voluntary party who obtains either “a judgment on the merits” or a change in conduct,” when the state defendants agreed to allow “court-ordered consent decree.” Buckhannon Bd. and Care an employee of the ODRC to be deputized in order to issue Home, Inc. v. W. Va. Dept. of Health and Human Resources, the marriage license. However, plaintiffs did not obtain a 532 U.S. 598, 600 (2001). Because the Chaiffetzes obtained “judgment on the merits.” The only judgment on their neither a “judgment on the merits” nor a “court-ordered request for injunctive relief declared that the request was consent decree,” they are not eligible for attorney’s fees. mooted by the parties’ voluntary actions. Nor did plaintiffs obtain a “court-ordered consent decree.” Although the In Buckhannon, the plaintiff obtained the result it was settlement conference occurred at the district court, with the seeking when the West Virginia legislature, which was not a district judge’s involvement, the resulting settlement did not party to the lawsuit, changed a statute. The Court held that bear the necessary “judicial imprimatur.” For example, no the plaintiff was not a prevailing party in that lawsuit, thus judicial oversight was involved in enforcing the settlement, precluding it from obtaining attorney’s fees. The Court and the district court did not issue any order altering the stated: defendants’ conduct. The district court itself did not consider its action to be a “consent decree” leading to prevailing party Numerous federal statutes allow courts to award status under Buckhannon. The district court stated: attorney’s fees and costs to the “prevailing party.” The question presented here is whether this term includes a [T]here has not been a court ordered consent decree. party that has failed to secure a judgment on the merits or Although the parties settled the Plaintiff’s [sic] claim for a court-ordered consent decree, but has nonetheless injunctive relief at a Court sponsored settlement achieved the desired result because the lawsuit brought conference, the record is clear that the agreement was about a voluntary change in the defendant’s conduct. We purely a private one that resulted in no Court ruling or hold that it does not. Order on the merits. Moreover . . . the fact that the Court’s Opinion and Order on summary judgment 532 U.S. at 600. In order to “prevail,” and thus to become indicates a potential violation of the Constitution is of no eligible for attorney’s fees, a party must have obtained a moment under Buckhannon because the Court has “judicially sanctioned change in the legal relationship of the ordered no judicial relief in this case. As no judicial parties.” Id. at 605. “A defendant’s voluntary change in relief was granted in this case, nor was any consent conduct, although perhaps accomplishing what the plaintiff decree issued, the court concludes that the Plaintiffs are sought to achieve by the lawsuit, lacks the necessary judicial not prevailing parties . . . . imprimatur on the change.” Id. Only “enforceable judgments on the merits and court-ordered consent decrees create the material alteration of the legal relationship of the parties

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In light of the Chaiffetzes’ failure to obtain a judgment on the Buckhannon in deciding whether to grant attorney’s fees. The merits or a court-ordered consent decree, they are not entitled Sixth Circuit and other courts have similarly applied the to attorney’s fees under Buckhannon. Buckhannon prevailing party rule to cases that were pending when Buckhannon was decided. See Chambers v. Ohio Dept. The Chaiffetzes contend that Buckhannon should not apply of Human Serv., 273 F.3d 690, 692-93 (6th Cir. 2001); N.Y. to this case because it was initiated before Buckhannon was State Fed’n of Taxi Drivers, Inc. v. Westchester County Taxi decided.6 Buckhannon was decided on May 29, 2001. The and Limousine Comm’n, 272 F.3d 154, 158-59 (2d Cir. district court, having been apprised of Buckhannon by the 2001); Johnson v. Rodriguez, 260 F.3d 493, 495 (5th Cir. judicial defendants, issued its order denying attorney’s fees on 2001); Bennett v. Yoshina, 259 F.3d 1097, 1100-01 (9th Cir. September 7, 2001. 2001). The Chaiffetzes’ argument fails. There is no authority for Therefore, the district court was correct in applying the Chaiffetzes’ suggestion that Buckhannon should not apply Buckhannon to this case. Because the Chaiffetzes were not to their case. The case they cite in support of their position, prevailing parties under Buckhannon, the district court was Chevron Oil v. Huson, 404 U.S. 97 (1971), has been also correct in determining that the Chaiffetzes were not overruled to the extent that it permits the selective eligible for attorney’s fees. prospective-only application of a new rule of law. See Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 752 (1995). III. Instead, we apply the following principle announced by the Supreme Court: For the foregoing reasons, we affirm the judgment of the district court in all respects. When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule. Harper v. Va. Dept. of Taxation, 509 U.S. 86, 97 (1993). Under this rule, it was proper for the district court to consider

6 The Chaiffetzes instead ask that this court apply pre-Buckhannon law to their request for attorney’s fees. Before Buckhannon, courts applied the so-called “catalyst theory.” Under the “catalyst theory,” a plaintiff who obtained relief through a settlement was a prevailing party if the plaintiff could (1) dem onstrate that his or her lawsuit was causally related to securing the relief obtained and (2) establish some minimum basis in law for the relief secured. Johnston v. Jago, 691 F.2d 283, 286 (6th C ir. 198 2). Buckhannon struck d own the catalyst theory.

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______________________________________________ anyone that you would find acceptable to serve as Deputy Clerk, and will pay him or her for his services. CONCURRING IN PART, DISSENTING IN PART ______________________________________________ Brigano replied that he was denying Toms’s request. He gave no explanation other than to state that “I do not see myself or RONALD LEE GILMAN, Circuit Judge, concurring in part the institution being involved in this process . . . .” Scott P. and dissenting in part. I concur in the majority’s conclusion Bellinger, an attorney retained by Toms, then raised the issue that Bob Taft, Reginald J. Wilkinson, Lawrence Belskis, and in a second letter to Brigano. Brigano again denied the Mark Clark are entitled to summary judgment. Based upon request with little explanation: the present record, however, I believe that Warden Anthony J. Brigano should have known that his actions violated Ira Your request that we assist by designating a staff person Chaiffetz’s clearly established constitutional rights, thus as a “deputy clerk to issue the marriage license” for Ms. precluding his entitlement to summary judgment on the basis Toms and inmate Chaiffetz must be denied. Our policy of qualified immunity. I therefore respectfully dissent from regarding inmate marriages which is attached for your the majority’s conclusion to the contrary. review states “all preparatory obligations, such as securing a marriage license, are the sole responsibility of The facts in this case that are pertinent to Brigano’s claim the couple to wed.” of qualified immunity are not in dispute. Ira Chaiffetz sought to marry Laura Toms while he was an inmate at the Warren Brigano’s refusal to allow anyone, WCI employee or not, to Correctional Institution (WCI). Ohio statutory law, however, serve as a deputy clerk resulted in Chaiffetz’s inability to mandates that in order to receive a marriage license, “[e]ach marry. of the persons seeking a marriage license shall personally appear in the probate court within the county where either The Supreme Court, on the other hand, has declared that resides.” Ohio Rev. Code § 3101.05(A). prisoners retain their fundamental right to marry. Turner v. Safley, 482 U.S. 78, 95 (1987). Further, where a prison Chaiffetz and Toms investigated various avenues for regulation impinges upon this right, the regulation is valid satisfying the personal-appearance requirement. A judge of only “if it is reasonably related to legitimate penological the Franklin County Probate Court informed them that interests.” Id. at 89. The prison regulation in the present someone at WCI could be deputized as an official of the court case—that “all preparatory obligations, such as securing a for that purpose. Toms therefore wrote a letter to WCI marriage license, are the sole responsibility of the couple to Warden Brigano, explaining: wed”—completely thwarted Chaiffetz’s constitutional right to marry. Unless the regulation was reasonably related to a I spoke at length with the Magistrate at the Franklin legitimate penological interest, therefore, Chaiffetz’s County Probate Court and was told that the appointed constitutional rights were violated by Brigano’s application Deputy Clerk need not be a prison employee; it can be of the prison policy; that is, by Brigano’s refusal to allow anyone the Warden is willing to allow to act in this anyone to serve as a deputy clerk. manner. With your assistance, I believe we can find a workable solution. I am willing to cooperate with In light of Turner, any reasonable prison warden under the circumstances should have recognized the unlawfulness of

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applying a policy that completely denied a prisoner the right itself takes place. On this record, however, the almost to marry. Brigano has not asserted before the district court or complete ban on the decision to marry is not reasonably on appeal that his refusal to allow anyone at WCI to be related to legitimate penological objectives.” Id. at 99 deputized for matrimonial purposes was related to a (citation omitted). legitimate penological interest. Nothing in the Court’s analysis depended on the precise The majority nevertheless concludes that Brigano is entitled method by which the prison officials made marriage to qualified immunity because the policy prohibiting inmates impossible. In fact, one could easily characterize the prison from marrying (by preventing them from obtaining marriage regulation at issue in Turner as a failure by the prison’s licenses) did so implicitly, rather than explicitly. According superintendent to provide a chaplain to perform marriages to the majority, “neither [Turner nor an unpublished Sixth unless he agreed that there were compelling reasons to do so. Circuit case] discusses whether prison officials and judges Thus viewed, Turner itself involved a failure by prison must affirmatively aid prisoners in their efforts to marry.” officials to “affirmatively aid” inmates in marrying. The (Maj. Op. at 11) But neither do these cases relieve a prison action/inaction dichotomy, in other words, is a distinction official from liability for enforcing regulations that without a difference in this context. Even the majority completely frustrate an inmate’s right to marry simply recognizes that “the distinction between actively prohibiting because the official chooses to “stick his head in the sand.” an inmate’s exercise of his right to marry and failing to assist is untenable . . . .” (Maj. Op. at 12) (Emphasis added.) One To marry under Ohio law, a couple must obtain a marriage wonders how a reasonable official could believe himself to be license and then have their union solemnized by an authorized complying with Supreme Court precedent by relying upon an official. Ohio Rev. Code §§ 3101.05 (marriage license) and “untenable” distinction. 3101.08 (who may solemnize). Take away either the license or the official, and one cannot marry. The prison regulation The primary answer to this question, according to the applied by Brigano to Chaiffetz in this case effectively told majority, is that this court’s decision in Gibson v. Matthews, the prisoner: “Sure you can marry. You just can’t have the 926 F.2d 532 (6th Cir. 1991), generally sanctions the required license.” That is doublespeak. No warden could action/inaction distinction in the context of prison regulations. reasonably believe that he was complying with Turner’s (See Maj. Op. at 13) (“Thus, if Brigano considered Gibson, he command by adopting the position taken by Brigano in this could reasonably have believed that Chaiffetz had no case. constitutional right to require officials’ affirmative assistance in marrying simply because one case, Turner, had held The regulation challenged in Turner “permit[ted] an inmate unconstitutional a policy prohibiting marriages.”) (Emphasis to marry only with the permission of the superintendent of the in original). In Gibson, the court considered the § 1983 claim prison, and provide[d] that such approval should be given of a prisoner who had “wanted to have an abortion and was only ‘when there are compelling reasons to do so.’” 482 U.S. not enabled to do so as a result of the actions of different at 82. According to the Supreme Court, the constitutional federal officials.” 926 F.2d at 533. This court concluded that issue was whether that “regulation impermissibly burden[ed] summary judgment for the defendants was appropriate the right to marry.” Id. at 97. The Court concluded: “It is because they were entitled to qualified immunity. undisputed that Missouri prison officials may regulate the time and circumstances under which the marriage ceremony

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In my opinion, Gibson does not support the majority’s such a finding.” Hope v. Pelzer, 122 S. Ct. 2508, 2516 analysis. Part of the problem may be the way the majority (2002). The rationale of applicable precedent, at least as summarizes Gibson, which is as follows: “In Gibson, this much as the precise facts of the case, is sufficient to give court held that the law had not clearly established that prison officials fair notice concerning their legal obligations. Id. at officials were required to facilitate prisoners in their requests 2517. In Hope itself, for example, the Supreme Court held for abortions, although prior cases had held that prisoners had that prison guards could not reasonably believe that it was the right not to be prevented from having an abortion.” Maj. constitutional to wantonly hitch prisoners to a post for hours Op. at 13 (citing Gibson, 926 F.2d at 535) (Emphasis in on end, even though circuit precedent dealt only with hitching original). The second half of the majority’s recitation is prisoners to fences. Id. Similarly, no warden could have incorrect. What the Gibson court actually said was: “At the reasonably doubted the unconstitutionality of a regulation that time these events took place, there were no reported cases banned inmates from marrying (by preventing them from regarding the abortion rights of prisoners.” 926 F.2d at 535 getting marriage licenses) on the basis that the regulation in (emphasis added). In the present case, on the other hand, Turner banned inmates from marrying by another means (by Turner clearly set forth the right of prisoners to marry prior to subjecting the request to the unfettered discretion of the Brigano’s actions. superintendent). The Supreme Court clearly stated in Hope “that officials can still be on notice that their conduct violates The Gibson court did discuss the right of citizens generally established law even in novel factual situations.” Id. at 2516. (not prisoners) to abortions, and it recognized that although certain Supreme Court decisions had held “that the I am therefore of the opinion that we should reverse the government cannot restrict access to abortions [where] the district court’s grant of summary judgment to Brigano. If his government acted wholly in a prohibitory manner,” other refusal to appoint a probate court deputy clerk at WCI was in cases established “that the government was not under an furtherance of a legitimate penological interest, he can obligation to facilitate abortions.” Id. at 536. But I cannot develop the facts supporting such an argument on remand. conceive that the court’s discussion would have given The district court would remain free to grant him judgment as Brigano cause to think that he could deny, for no penological a matter of law on the ground of qualified immunity should reason, a prisoner the right to marry so long as the policy he such facts be developed. On the present record, however, was enforcing was phrased in terms of inaction. This is due Brigano is not entitled to qualified immunity because he to the fact that a physician can provide an abortion without applied a prison regulation to completely deny an inmate’s the aid of the state, whereas a marriage does not exist without right to marry without any apparent penological justification. the state. That an action/inaction distinction has currency in I would therefore reverse the portion of the district court’s the context of abortion, therefore, provides no reason to judgment that grants Brigano qualified immunity and remand suppose that it has meaning in the context of the right to for further proceedings. marry. Indeed, as explained above, the action/inaction distinction in this context amounts to no more than Finally, a word of explanation is in order as to why I sophisticated wordplay. believe that summary judgment in favor of Bob Taft and Reginald J. Wilkinson was proper, but was not proper as to “Although earlier cases involving ‘fundamentally similar’ Brigano. The majority expresses puzzlement that “Brigano facts can provide especially strong support for a conclusion would be treated differently than Taft or Wilkinson, who both that the law is clearly established, they are not necessary to also received correspondence from plaintiffs and who both

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presumably had the authority to alter the policy at issue.” Analysis of Bob Taft’s actions leads to a similar (Maj. Op. at 12 n.4) There are, however, material differences conclusion. As governor of Ohio, Taft was not responsible in the actions taken by each of these gentlemen vis-a-vis the for applying prison regulations to any particular inmate. Chaiffetzes. Toms nevertheless sent him a letter dated October 29, 1999 that sought his assistance. He forwarded the letter to the Ohio Section 1983 makes liable only the “person who, under Department of Rehabilitation and Correction. I am aware of color of any statute . . . subjects, or causes to be subjected, no case law identifying this action as constitutionally any citizen of the United States . . . to the deprivation of any problematic, much less clearly so. rights . . . secured by the Constitution.” 42 U.S.C. § 1983. The Chaiffetzes brought suit against many officials, but “[i]f Summary judgment was therefore proper for Wilkinson and any one of them is to be held liable, it must be based on the Taft, neither of whom actually applied a prison regulation to actions of that defendant in the situation that the defendant Chaiffetz. But Brigano, on his own authority and without any faced.” Gibson, 926 F.2d at 535. Section 1983 plaintiffs direct order from Wilkinson, Taft, or any other superior, did cannot prevail on a theory of respondeat superior. Combs v. so act. In light of Turner, I believe that he should have Wilkinson, 315 F.3d 548, 557-58 (6th Cir. 2002) (“Plaintiffs known better. I therefore respectfully dissent from the essentially seek to impose respondeat superior liability majority’s contrary conclusion. against the supervisory officers, ManCI, ODRC, and/or the state of Ohio for the actions of these unidentified officers. It is well settled that § 1983 liability will not be imposed solely on the basis of respondeat superior.”). I first turn to Wilkinson’s claim of immunity. He is the Director of the Ohio Department of Rehabilitation and Correction. This supervisory position does not require him to actually apply prison regulations to any particular inmate. Wilkinson’s direct involvement in this case is in fact very limited. After receiving no relief from Brigano, the attorney for Toms wrote a letter to Wilkinson on September 24, 1999. The first sentence of the letter stated: “The purpose of this correspondence is to inquire as to the State of Ohio’s procedures for inmates to exercise their constitutional right and obtain a marriage license while incarcerated outside of their county of residence.” Assistant Chief Counsel T. Austin Scott replied to this letter on Wilkinson’s letterhead, attaching a copy of the Ohio policy on inmate marriages. Replying to this request for information did not violate any clearly established constitutional rights.